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Would Dorchester Boy Hit by Car Have a Negligence Claim?

A boy was hit by a car in Dorchester Sunday afternoon after running into the street while playing with his brother, The Boston Herald reported. The boy was still on life support on Tuesday morning. As of now, the driver of the vehicle has not been cited for anything.

The question that remains to be seen is whether the boy's family brings a suit against the driver for negligence. While this is a possibility to recover some of the boy's medical costs, any award of money may be lowered based on who the court would find was at fault.

Negligence is a legal theory that compensates victims of actions that don't break a law, but instead break a legal duty owed to the victim and causing harm to that victim. In other words, everybody owes the duty to be reasonable in their actions. When they are not and they harm someone, then they are negligent.

There is another way to be found negligent, and that is if you break a public safety law when you hurt someone. When that is the case, it is easier to find someone negligent for their actions.

Based on the facts out of Dorchester so far, it seems like the driver was driving the posted speed limit. Also, without a citation from the police, it doesn't seem like the driver broke any other traffic law. This means that the boy and his family would have to show that the driver was acting in an unreasonable way (messing with the radio, texting, etc.).

News reports say that the street where the accident happened was home to many children. If this was known in the area or posted on a sign, it could be argued that the driver knew and should have been driving slower because of that knowledge. However, this would be an uphill battle for the boy to prove the driver's knowledge or that they were not otherwise distracted.

There could be more problems for the suit because Massachusetts is a comparative negligence state. This means that any award received by a person bringing the lawsuit would be reduced by the percentage of the harm caused by that person. In other words, if your action caused 30% of the damage in a car wreck and you were awarded $100,000; your award would be reduced to $70,000.

It is unlikely that comparative negligence would come into play because of the negligence standard for children. Children are not held to the same standard as adults. Instead, children are compared to their peers. So the question here would be if the boy was acting like a reasonable 5-year-old would. Parents know this is a pretty low bar. Most likely, a 5-year-old would not know better than to run into the road in a safe neighborhood, but this is arguable.

The result? The Dorchester boy and his family could bring a lawsuit, but they would have some hurdles to jump before they win payment for his medical bills.

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